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RIAA Must Divulge Expenses-Per-Download 305

Posted by kdawson
from the treble-damages-are-for-wimps dept.
NewYorkCountryLawyer writes "The Court has ordered UMG Recordings, Warner Bros. Records, Interscope Records, Motown, and SONY BMG to disclose their expenses-per-download to the defendant's lawyers, in UMG v. Lindor, a case pending in Brooklyn. The Court held that the expense figures are relevant to the issue of whether the RIAA's attempt to recover damages of $750 or more per 99-cent song file, is an unconstitutional violation of due process."
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RIAA Must Divulge Expenses-Per-Download

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  • $750 (Score:4, Interesting)

    by grub (11606) <slashdot@grub.net> on Tuesday November 27, 2007 @12:46AM (#21488833) Homepage Journal

    I've always been amazed by the gall they have quoting that number. What other type of copyright infringement can claim 757.6 times the value of the product as damages? When the SPA goes after companies using pirated commercial software they don't look at an old copy of Windows 98 and try claiming $8000 as damages, do they?

  • by BosstonesOwn (794949) on Tuesday November 27, 2007 @12:51AM (#21488865)
    It's already happening. My neighbors are a couple lawyers. Albeit they are criminal and Divorce , they are saying that most people in their firm are getting crap from judges for bringing stupid patent cases to court.

    Thankfully their firm is downtown boston so tons of stupid companies go to them daily. These patent trolls are losing money quickly and it's great to see the RIAA is running into the same issue.

    They need to update thier business model or face becoming extinct.
  • by MichaelCrawford (610140) on Tuesday November 27, 2007 @12:52AM (#21488871) Homepage Journal
    You don't have to pay the iTunes Music Store to download music legally. Many musicians offer free downloads of their music as a way to promote themselves. I'm one such artist [geometricvisions.com]. You could really help me out if you shared my music over the Internet.

    You can find many other such artists, and free, legal music hosting sites in my article Links to Tens of Thousands of Legal Music Downloads [goingware.com].

  • This is really slow (Score:4, Interesting)

    by slashqwerty (1099091) on Tuesday November 27, 2007 @12:56AM (#21488909)
    Is it just me or is there a ridiculous number of exhibits and motions in this Lindor case? I count 239 links on Ray's blog just for this one case. I noticed this link [ilrweb.com] from December 14, 2006--a year ago--in which the plaintiffs appear to be stalling on this very issue. The letter makes reference to a hearing from August of 2006. Has this one issue really been going on that long?
  • Nothing "ironic" (Score:5, Interesting)

    by mi (197448) <slashdot-2014@virtual-estates.net> on Tuesday November 27, 2007 @01:00AM (#21488933) Homepage

    Wouldn't it be ironic if the lawsuits brought by the RIAA in an attempt to preserve/enhance strong copyright ended up severely diminishing U.S. copyright law instead?

    They were in a lose-lose situation before they started. Ignore the problem, and the copyright law is useless. Try to enforce your rights, and the legal protections degrade, as you observed.

    Fighting the mob is very difficult — but they are trying. At least, a watered-down law may still be a law they may be able to enforce...

  • by NoPantsJim (1149003) on Tuesday November 27, 2007 @01:01AM (#21488935) Homepage
    Just out of curiosity, has anyone on Slashdot been on the receiving end of an RIAA suit, or possibly a lawyer dealing with a client who has been? Or not even directly involved, but just know someone who's been through this ordeal?

    Every time a story like this comes up I read as many comments as I can and think, "Well fuck, if it's this obvious to everyone here that what's happening is out of line and in some cases illegal, why can't that message be communicated more broadly?"

    I have an extensive list of information I've been saving from Slashdot just on the off chance I ever get an RIAA letter in the mail (I d/l maybe an album per month, 90% of the time I buy it after listening). If I find myself facing one of these suits, I would immediately turn over to my lawyer everything I've compiled to be sure they're aware of what should be argued and what RIAA claims are total BS.

    Is there an existing repository for information like this, or is it time people like us Slashdotters created one?
  • by speedlaw (878924) on Tuesday November 27, 2007 @01:07AM (#21488965) Homepage
    While the Brooklyn bench has its issues, the RIAA, etc have no "home court advantage" in NYC, nor do they impress the Court system on any level. Unlike a smaller burg this will cut no ice in NYC. RIAA, welcome to an unimpressed, hot Bench. Bout time.
  • Re:Well.. (Score:3, Interesting)

    by Lehk228 (705449) on Tuesday November 27, 2007 @01:12AM (#21488999) Journal
    I suspect the court will rule the extreme statutory damages amount to a fine rather than compensation for a tort and thus can only be imposed after a criminal trial.
  • by BosstonesOwn (794949) on Tuesday November 27, 2007 @01:13AM (#21489001)
    Yeah just don't use bit torrent to help market yourself , or the isps will throttle you and your fans who are trying to help you out.
  • by Adam8g (1181859) on Tuesday November 27, 2007 @01:15AM (#21489015)
    Yes - My son.

    He is a second year student at USC (University of Southern California)

    The attorney letter is from Holm Roberts & Owen LLP from their Denver office.

    The school passed on the letter and when I called the school's Acting Litigation Manager - was told that the school would pass on student info if a lawsuit is filed and the school receives a subpoena.

    To say I am disappointed at the school's passive position is an understatement. California has very strong laws requiring schools to protect the privacy of students - and if there should be legal action would be compelled to act in protecting student privacy.

    Since the school has very strong ties with the recording / film industry, and the LA basin is full of attorneys and judges that are graduates, the lawyer I consulted suggested settling.

    hummmm

  • by Sycraft-fu (314770) on Tuesday November 27, 2007 @01:19AM (#21489029)
    Just because there's a statue that says X, doesn't mean said statue is legal. It appears that they are claiming it's a 5th and 14th amendment violation, specifically the due process parts. My guess is the argument is based along the lines of the fact that the fines are excessive in relation to the damage. While it is not uncommon for fines to exceed damages, there is generally a somewhat reasonable limit to it. 1000 times, which is what it being claimed (the claim the songs are worth basically $0.70 to the record companies) is well, stupid. Imagine if you took something from a store, maybe you didn't even mean to you just weren't thinking. So they press charges for shoplifting. You then find out that there's a $3000 fine for that $3 pack of gum. A bit excessive maybe? Or how about you are in an accident that's your fault. You cause about $1000 worth of damage to the other guy's car. However you are informed the fine for doing that is $1,000,000.

    So their argument is, and I think quite reasonably, that the fines are just unconstitutional. Remember: Laws have to be legal too. Plenty of times in this country idiot legislators pass laws that are in contradiction to higher laws. Just because there is a statue setting damages at a minimum of $750 per song, doesn't make it right.
  • by bagsc (254194) on Tuesday November 27, 2007 @01:31AM (#21489107) Journal
    Quoth the Wikipedia "Punitive Damages:"
    "statistical studies by law professors and the Department of Justice have found that punitive damages are only awarded in two percent of civil cases which go to trial, and that the median punitive damage award is between $38,000 and $50,000.[7]

    In response to judges and juries which award high punitive damages verdicts, the Supreme Court of the United States has made several decisions which limit awards of punitive damages through the due process of law clauses of the Fifth and Fourteenth Amendments to the United States Constitution. In a number of cases, the Court has indicated that a 4:1 ratio between punitive and compensatory damages is broad enough to lead to a finding of constitutional impropriety, and that any ratio of 10:1 or higher is almost certainly unconstitutional."

    If the song costs $1, and punitive damages of $749 are assessed, it's almost certainly unconstitutional. So why should it be legal statutorily?
  • The question I'm asking is whether damages are a form of punishment. If they are, then asking the defendant to pay 1000x the value of a work could constitute cruel and unusual punishment in my eyes.
  • by Anomolous Cowturd (190524) on Tuesday November 27, 2007 @02:11AM (#21489303)
    I just found iRATE [sourceforge.net] on one of the pages you linked. It's a nifty idea. Downloads a bunch of random stuff for you directly from the publisher, and you rate it. Then it downloads more stuff based on what you like, and what other users who liked that like. Fun :)
  • Re:Nothing "ironic" (Score:5, Interesting)

    by AuMatar (183847) on Tuesday November 27, 2007 @02:20AM (#21489357)
    Except it wasn't lose-lose. CD sales were up during Napster. Studies show those who pirate are more likely to buy cds. File sharing is just free advertising. This abuse of their customers has lost them business (I have not bought a cd in 4 or 5 years due to these lawsuits). The correct strategy was for them to ignore personal copying and go after commercial piracy, but they were too big a control freak to do that.
  • by Pc_Madness (984705) on Tuesday November 27, 2007 @03:00AM (#21489555)
    But won't they have to prove that the song was downloaded 750 times? :p
  • by jamstar7 (694492) on Tuesday November 27, 2007 @03:04AM (#21489581)
    Like the phone company [ph33r.org] did back in the day when they went after some kids for allegedly hacking a 911 system when actually, they downloaded a 'confidential computer text file' reputedly worth over $80k when they were selling copies of it for about 30 bucks. IIRC, they wanted to charge the kids for the cost of the computer system used to create the document, the time logged by the person that typed the document up, plus the salary of said typist's supervisor for the time the typist reputedly spent creating the document.
  • Re:$750 (Score:2, Interesting)

    by Thanshin (1188877) on Tuesday November 27, 2007 @03:10AM (#21489611)

    Does anybody reading this really have 10,000 songs in their share directory? That's about 30GB of music, if my math is correct. It's also about 10X of the threshold for criminal infringement. It's probably best to stick with numbers that are applicable to the real world.
    I don't move in music sharing communities, but I know many people with HDs bought for the exclusive reason of keeping shared movies. Going to a "campus party" with at least 1TB free is the norm.

    "The minimum should only apply to the complete fine, not each item. And then even $750 would make sense."


    That's an interesting idea, but it's a bit like the flat tax: the large-scale pirates would get off easy, and the little guys would get the rough end. Can you imagine what the record labels might do if the law were changed so that the minimum statutory were $750 total? They might start suing college students with one song in their share directory. And, your hypothetical fellow distributing 10,000 songs might only be liable for a $750 fine.

    You are right. A big part of the problem is that the RIAA customizes the legal attack to dodge or use the standing laws. A low statutory minimum just forces them to pull bigger infraction numbers, a higher one lets them build bankruptcy amounts with a very small amount of songs.

    I'd try the "small minimum, reasonable maximum" idea, but I'm no longer sure there's a legal solution that doesn't imply changing the copyright laws so they can't build any case they need, to break the punishing side.
  • by gethoht (757871) on Tuesday November 27, 2007 @03:19AM (#21489653)
    I've been thinking about different arguments in regards to fair use(specifically: the amount and substantiality of the portion used in relation to the copyrighted work as a whole) and the technical nature of how bittorrent works.

    Torrents are made up of a bunch of little pieces. Could someone even prove that you actually had a substantial amount of a specific file if you were in a swarm of seeders? Could you claim fair use given the fact that you might only have a piece of a file in question? Just a thought...
  • by Spy Hunter (317220) on Tuesday November 27, 2007 @04:28AM (#21489937) Journal
    The wiggle room there is that statutory damages are used because calculating the actual damages is hard. The song costs $1, but the defendant probably uploaded it multiple times (and with the expectation that those copies would be further distributed). Therefore the damages are a *multiple* of $1. The RIAA would probably argue that the multiple could easily be 75 or more, making the damages fall under the 10:1 threshold you quote.

    But I think a little critical thinking could topple that argument. It's easy to see that across a P2P system, the average number of times each copy of a song has been uploaded is 1. The number of uploads is by necessity exactly equal to the number of downloads. So in order for it to be plausible that the defendant uploaded a particular song 75 times, the defendant would have to be uploading that song *much* more than average. I don't think there's any evidence to prove that, though I might be wrong.

    The RIAA might then argue that any uploading by the defendant was done with the expectation that the recipient would further upload the song to other people, and therefore uploads done by those people should factor in. Also, if this argument succeeded in reducing the damages, the RIAA would start collecting evidence on things like connection speed and uptime, and start suing people on fast pipes with 24/7 availability, using that as evidence that they uploaded more than average. There are plenty of those people to sue, and taking them out preferentially would kill P2P networks faster anyway.
  • by BosstonesOwn (794949) on Tuesday November 27, 2007 @05:51AM (#21490267)
    2 words , digital distrobution. Cut the costs of doing business and make it easier to own the product and buy it then to download it illegally.

    for a song download cd for $5 and get a hard copy sent for $10 total. With album art !
    software lets say a game , seed a torrent sell the cd key via email for $10 or $20 ! no cd needed in the drive.
    movies $8 download $12 physical disc and $15 for Hd version your choice.
    how about movies sent to a tivo or music to a tivo ? There are so many solutions but no one wants to use them because they would make less per sale.

    It scales well. Business on the web are about bringing down costs. If you want the cd fine go to the store and get it for same cost as it would be to get it delivered.

    They shouldn't be price fixing and they should learn to evolve with technology.
  • by Anonymous Coward on Tuesday November 27, 2007 @07:56AM (#21490865)

    How many people actually have an upload / download ratio greater than 1? Not many I'd say.

    In fact the overall average for downloaders would be hard pressed to be even 1. Obviously, whoever is seeding the download would have a higher average
    I believe their argument is that the one person that the first person uploads it to will upload it to another, who will upload it to more, and they'll upload it to more etc. so that the number of downloaders increases exponentially with every iteration.

    Not that I believe this is a valid argument of course.
  • by RareButSeriousSideEf (968810) on Tuesday November 27, 2007 @08:02AM (#21490917) Homepage Journal
    (Yikes, it's scary to find myself offering an argument for the RIAA's side of something. I'll take a long shower after posting this, but anyway...)

    IANAL, but I can't think the courts would refuse to admit a methodologically sound series of independent experiments into evidence, whereby the experimenter seeds a number of files (of varying popularity) with unique, recognizable bitprints, then measures and documents their distribution. The RIAA probably holds the position that a filesharer is responsible not only for the direct downloads he generates, but for subsequent distribution of the file as well. 10 * 10 * 10 gets you over 750 pretty fast.

    Admitting the study into evidence might make them have to adjust the damage amounts to consider each song's popularity, but it could conceivably justify an average of 750 copies in circulation * $0.99, over time.
  • by Yor James Perkovich (1194263) on Tuesday November 27, 2007 @08:51AM (#21491337)
    So let's say I leak an unreleased CD and I make sure it's accompanied by a little txt disclaimer saying that I'm not responsible for the subsequent actions of any of the downloaders. There goes the 10 * 10 * 10 argument, right? Or does the fact that my distribution is illegal to begin with make other aspects of my 'business model' irrelevant?
  • Re:Nothing "ironic" (Score:3, Interesting)

    by jank1887 (815982) on Tuesday November 27, 2007 @08:56AM (#21491401)

    "Are we down to mob rule where if the mob doesn't want to pay then they don't have to?"

    Yes. We've been there. Prior to 'now' there were physical restrictions in place holding the mob (or, general public) at bay from getting what they want for nothing (shoplifting laws and penalties, quality degradation from analog copies, etc.). Those restrictions have been largely removed. The legal threat is now akin to the speed limit. Once someone buys any one thing, and shares it, it will be available to everyone for nothing. No pricing scheme can defeat that. "come on, after you download it, buy the album/movie anyway, support the artist" is a lame attempt at rationalizing the freeloading. Soon, the entire music 'industry' will consist of charity donations to the artist from dedicated fans, while the majority get whatever they want for nothing. Something akin to 'abuse of the commons' will take over. Music for profit or as a viable career/industry will seriously diminish. Money will only be made through live performance, maybe songwriters could get money from licensing their songs to live performers, but recording music will likely go the way of long distance telephone rates.

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